Your Right to Know

A divided judicial commission today decreed that a former state appellate judge running for the Ohio Supreme Court can call himself a “judge.”

In a 7-6 decision overturning the ruling of a five-judge panel, the commission found William M. O’Neill, a Democrat who retired from the 11th District Court of Appeals based in Warren in 2007, violated no judicial ethics rules by distributing campaign material that refers to him as a “judge.”

While the reference may mislead voters by implying he is a current officeholder, O’Neill is within his constitutional right of free speech to discuss his qualification for the position he seeks, the commission’s majority ruled.

In the brochure at issue, O’Neill identifies himself as a “former” judge once and states he has served by invitation on the Supreme Court of Ohio. Both statements are true, the commission found.

O’Neill also identified himself seven other times in the brochure as “Judge O’Neill.”

“Although it is arguable that (O’Neill’s) brochure may mislead an observer, we find a “doctrine against misleading” is even a greater threat to free speech,” the majority wrote.

“Undisputedly, in common conversation, a retired former judge is called ‘Judge.’ Furthermore, as a voluntarily retired judge not engaged in the practice of law, (O’Neill) remains eligible for assignment to active duty as a judge.

“To prohibit (O’Neill) from speech wherein the disclaimer of “former judge” is prominent in the advertisement has a chilling effect on his First Amendment privileges and rights.”

The complaint against O’Neill was filed by Carlos M. Crawford, of Delaware, Ohio. He did not attend any disciplinary hearings but in his complaint said O’Neill handed him the brochure and he felt it was misleading.

The five-judge panel in March upheld the recommendation of a disciplinary panel that O’Neill be ordered to cease distributing the campaign brochure – the minimum penalty – because he was violating Ohio’s judicial conduct code, which prohibits making false statements.

O’Neill is running against Republican incumbent Justice Robert R. Cupp. It’s O’Neill’s third bid for the court in eight years.